Summary of Recent Cases – Substantive Law

Jones & Ors v Secretary of State for Energy and Climate Change & Anor. [2012] EWHC 2936 (QB), All ER (D) 271 (Oct)

This case concerned eight lead claims brought by men who had formerly worked at the Abercwmboi Phurnacite Works. Around 250 claimants were part of a joint action, in which they claimed that they had suffered respiratory disease and/or cancer as a consequence of exposure to dust and fumes in the course of working at the phurnacite works.

The Secretary of State conducted proceedings both on his own behalf and on behalf of the Second Defendant, the defunct company which had operated the phurnacite works.

The claimants claimed that the defendants had acted in breach of their statutory duty under provisions of the Factories Acts 1937, 1959 and/or 1961. The claimants claimed that as a consequence of the exposure to dust and/or fumes caused by the Defendants’ breach of statutory duty, the claimants had variously contracted chronic obstructive pulmonary disease (COPD) and chronic bronchitis (CB); or various forms of cancer.

The three lead claimants for lung cancer were exposed to carcinogens both through their work and through smoking. These exposures, together with other exposure to carcinogens in the environment unrelated to their work, were likely to have played a part in the carcinogenic processes in these claimants’ bodies.

The defendants disputed that the carcinogens to which the claimants were exposed were capable of causing bladder cancer; or skin cancer of the type suffered by the two lead claimants with skin cancer.

The claimants submitted that the cancer cases should be decided on the test of whether exposure at work had made a material contribution to the claimants’ conditions; and that they should be able to establish liability by applying the test in Bonnington Castings v Wardlaw [1956] 1 All ER 615 even if they could not succeed in establishing that the risk of contracting cancer had doubled. The defendants argued for the doubling of risk test in relation to the cancer cases.

The defendants accepted that the claimants had been exposed to a substantial amount of dust in the course of their work, and that the defendants had been obliged under the Factories Acts to take all practicable measures to protect the workers. The issues were whether the defendants had taken all practicable measures; whether the test in Bonnington was applicable when establishing causation; and whether the claims were statute barred under ss 11 or 14 of the Limitation Act 1980, and if so whether the court should use its discretion under s 33 of the Limitation Act 1980 to permit the claims to proceed.

The court ruled that:

• The defendant was in breach of its duties under s 47 of the 1937 Act and s 63 of the 1963 Act in respect of those workers who worked inside, but not those who were exposed to dust in the outside areas;

• Simply because an injury was indivisible, that did not prevent the Bonnington test being applied. In considering whether Bonnington had any application in relation to the lung and bladder cancer cases, the court should consider whether the claimants could establish that the exposure made a material contribution to their cancer; if so, then whether the occupational exposure was capable of being considered one of the cumulative causes of the claimants’ cancer; if so, then whether there was any basis upon which the claimants could establish that the contribution made by occupational exposure to the development of their cancer was material. When those factors were considered, it became apparent that the doubling of risk approach was the appropriate one.

• The question of the date of knowledge for the purposes of the Limitation Act had to be settled individually, with reference to the state of local awareness of the risk arising from pollution coming from the phurnacite plant.

• In relation to s 33, difficulties in obtaining funding had to be taken into account as part of the explanation for the delay.

These findings were then applied to each individual claimant. Judgments in relation to each claimant are appended to the main judgment.

November 16, 2012 · Editorial Team · Comments Closed
Posted in: Cases